R v McDonald (a pseudonym) [2024] NSWDC 265

R v McDonald (a pseudonym) [2024] NSWDC 265

The alleged tendency evidence concerning the accused's younger sister was relevant and would otherwise attract the s 97A presumption, but the combination of circumstances was exceptional: some alleged acts occurred when the accused was of an age raising doli incapax considerations, the accused was a child at all relevant times, the alleged conduct differed from the charged conduct, and approximately three decades had passed without blemish. Those circumstances weakened the probative value so that the evidence did not have significant probative value. In any event, the prejudicial effect of the graphic physical allegations, including ejaculation on the body of the accused's young sister,...

Jurisdiction
Australia
Judgment Date
04 July 2024
Procedural Posture
Criminal Sexual Offence Proceedings / Crown Application to Lead Tendency Evidence
Outcome
The Crown application to lead tendency evidence concerning the accused's sister was refused.
Legal Topics
['admissibility of Tendency Evidence' 'child Sexual Offences' 'section 97 a of the Evidence Act 1995 (nsw)' 'significant Probative Value' 'exceptional Circumstances' 'unfair Prejudice']
['criminal Procedure' 'evidence' 'sexual Offence Proceedings'] ['admissibility of Tendency Evidence' 'child Sexual Offences' 'section 97 a of the Evidence Act 1995 (nsw)' 'significant Probative Value' 'exceptional Circumstances' 'unfair Prejudice']

Case Brief

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Procedural Posture

Criminal Sexual Offence Proceedings / Crown Application to Lead Tendency Evidence

Legal Issues

  1. 1 ['Whether proposed evidence of uncharged acts allegedly committed by the accused against his younger sister was admissible as tendency evidence in proceedings involving child sexual offences.' "Whether the factors in s 97A(5) of the Evidence Act 1995 (NSW), including the passage of time, differences in conduct and relationship, and the accused's age at the time of the alleged tendency acts, amounted to exceptional circumstances warranting consideration." 'Whether the statutory presumption that the tendency evidence had significant probative value was rebutted.' 'If the evidence had significant probative value, whether its probative value outweighed the danger of unfair prejudice.']

Ratio Decidendi

The alleged tendency evidence concerning the accused's younger sister was relevant and would otherwise attract the s 97A presumption, but the combination of circumstances was exceptional: some alleged acts occurred when the accused was of an age raising doli incapax considerations, the accused was a child at all relevant times, the alleged conduct differed from the charged conduct, and approximately three decades had passed without blemish. Those circumstances weakened the probative value so that the evidence did not have significant probative value. In any event, the prejudicial effect of the graphic physical allegations, including ejaculation on the body of the accused's young sister,...

Court Disposition

The Crown application to lead tendency evidence concerning the accused's sister was refused.

Orders

  • ["The proposed tender of the tendency evidence with respect to the accused's sister is rejected."]